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United States v. Pizzo

decided: January 18, 1972.


Adams, Ganey and Max Rosenn, Circuit Judges.

Author: Ganey


GANEY, Circuit Judge.

Appellant pleaded not guilty in March of 1969 to all four counts of an indictment charging him with selling on three separate occasions and with attempting to sell on another counterfeited $20 Federal Reserve Notes in October of 1968, in Jersey City, New Jersey. On May 12, 1970, he retracted his not guilty plea to Count IV*fn1 and pleaded guilty to that count at a Rule 11 hearing before District Judge Lawrence A. Whipple. At this hearing he was represented by retained counsel who stated to the court after making the motion for the change of plea: "I have explained to Mr. Pizzo the legal effects of this, and the punishment that this Court may impose upon him."

On November 24, 1970, the appellant was sentenced by District Judge Robert Shaw. The Judge had originally intended to give him an eight year sentence, but instead gave him credit for pre-trial incarceration on another charge and imposed a sentence of seven years. On December 4, 1970, appellant filed his notice of appeal.*fn2

First : Appellant claims he pleaded guilty to Count IV only on condition that Judge Whipple personally would sentence him, as allegedly Judge Whipple had promised. This claim was not asserted as a ground for his motions for reduction or correction of sentence under Federal Criminal Rule 35 in the district court. However, we will consider this claim as though it had. The transcript of the Rule 11 hearing does not substantiate his claim. It shows that Judge Whipple asked appellant a series of nineteen questions. When he answered, "Yes" to the nineteenth, which was, "All that remains with this Court, if I accept this plea, is to sentence you according to law; right?," the court went on to allow the retraction of the not guilty plea and the entry of a plea of guilty by the appellant. But before the last question was asked, the appellant, in response to the other questions, admitted committing the offense charged in Count IV and that that was the reason why he was pleading guilty; that he knew he was entitled to a trial by jury, and that if the Judge accepted the change of plea, it was the same as if he had been tried before a jury and found guilty; that the maximum punishment for the offense was ten years' imprisonment, a $5,000 fine, or both, and that no one had promised him any leniency with regard to any sentence the Judge might impose. Thus even if Judge Whipple had promised that he would sentence him, he did not plead guilty only on that condition.

Second : The appellant also claims that the sentence imposed by Judge Shaw was based on an erroneous assumption or information. Before sentencing him on the charge under Count IV, Judge Shaw read aloud appellant's prior record from a presentence report. That record included no less than eight felony convictions and sentences over an eleven-year span. He then asked the appellant and his counsel if there were any questions about those convictions and sentences, and the appellant replied that there were none. After some colloquy between counsel and the court and the appellant and the court, which will be alluded to later, Judge Shaw said:

"Mr. Pizzo, it seems to me from all the information furnished to me that with respect to the charge in Count IV of this Indictment, that you weren't a small time operator. Anyone who is able to obtain the quantity [2,000] of counterfeit twenty dollar bills you obtained must be pretty close to the engraver . . . It is ordered that you be placed in the custody of the Attorney General of the United States and by him or his accredited representative committed to an appropriate institution for seven years.

"My initial thought was an eight year sentence but I rounded it out, giving you credit for the time spent in custody for which you would not receive administrative credit on this charge. That is the sentence of the Court."

Neither the appellant nor his counsel interposed any objection to the comment made by the Judge before he passed sentence.

He does not dispute the existence of the eight prior convictions read to him by the Judge from the presentence report. He does say, however, that the statement that he was not a small time operator and that he was close to the engraver is based on erroneous information, and now intimates that he should have been shown all or parts of the presentence report before the Judge imposed sentence. We have carefully read that report.*fn3 We will treat his claim as though it had been made at the sentencing hearing.

The Judge did not state categorically that appellant was a big time operator. He said that from the information furnished to him it seemed to him that he was. As the record now stands appellant is barred from asserting that he did not attempt to sell two thousand fake $20 bills. A statement that he had that many bills in his possession at the time of his arrest appears in the presentence report. There is nothing there about him being a big time operator. District judges are more familiar with the frequency of indictments concerning dealings in counterfeited money and the face amounts involved than circuit judges. The term "big time operator" is a relative one, and the placing of a person who deals in the number of fake bills that the appellant was attempting to peddle in that category has not been shown to be an unreasonable one.

The presentence report is also silent about engravers. The Judge did not say that appellant was close to one. His statement was no more than an indication that in his opinion one who deals in the quantity of bills that appellant dealt in must know or deal with the person who is responsible for printing the bills. This is no more than an assumption on the Judge's part, but we cannot say that it is beyond the realm of reason.

Since the presentence report contains no information to buttress his claim, appellant was not harmed by the omission of the court to disclose, pursuant to Rule 32(c) (2), Fed.R.Crim.P.,*fn4 ...

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